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Synopsis

The Supreme Court has said a conjoint reading of Section 311 CrPC and Section 165 of the Evidence Act makes it clear that the trial court is under an obligation not to act as a mere spectator and should proactively participate in the trial proceedings, so as to ensure that neither any extraneous material is permitted to be brought on record nor any relevant fact is left out. 

"It is the duty of the trial court to ensure that all such evidence which is essential for the just decision of the case is brought on record irrespective of the fact that the party concerned omits to do so," a bench of Justices B R Gavai and Sandeep Mehta said, while acquitting four men in a 2003 case of kidnapping a boy for ransom.

In the case, the bench felt fully satisfied that the trial court failed to perform its lawful obligation under Section 311 CrPC read with Section 165 of the Evidence Act inasmuch as, the most vital witness whose deposition was imperative for arriving at the truth of the matter i.e. Shamlal Garg, the boy's grandfather, was not produced by the prosecution though he was claimed to be the first person to have disclosed the incident to the Investigating Officer.

It was found the trial court took no steps whatsoever to summon him by exercising its powers under Section 311 CrPC and Section 165 of the Evidence Act. The fact that the FIR was not registered on the first disclosure of the incident made by Shamlal Garg to the Investigating Officer and non-examination of the said witness at the trial is a fatal lacuna which persuades this court to draw an adverse inference against the prosecution, the bench said.

The trial court as well as the High Court placed reliance upon the call detail records, concluding that the suspected mobile numbers were in use of four accused. However, the fact remains that no convincing evidence was led by the prosecution to connect the accused persons with the mobile numbers, the bench pointed out.

"There is no iota of truth in the prosecution story what to talk of proof beyond all manner of doubt which establishes the guilt of the accused. The fabric of the prosecution case is full of holes which is impossible to mend," the bench added.

With this view, it allowed the appeal filed by Gaurav Maini and three others against the trial court's judgment of 2005 and the High Court's decision of 2009, which held them guilty in the case.

The FIR in the case was lodged on April 15, 2003 after the statement of Shamlal Garg alleging his grandson was kidnapped by the accused on April 2, 2003 and released on April 3, 2003 on payment of ransom money of Rs one crore in Chandigarh. The boy and his father's statements were also recorded by the police.

The police filed charge sheet against seven persons. The trial court framed charges against Gaurav Maini, Gaurav Bhalla, Munish Bhalla and Sanjay @ Sanju for offences punishable under Sections 364A, 392 and 120B IPC. The remaining three accused were discharged.

Top court noted there was no logical reason whatsoever for Mahesh Garg, the father of the boy to have initiated steps for installing Caller ID facilities on the landline numbers on April 9 when the kindapped child has returned on April 3, 2003.

It pointed out the delay in lodging of the FIR was sought to be overlooked both the courts with a bald observation that the complainant party was under the fear of the threats given by the accused.

Shamlal Garg, the grandfather who first disclosed the incident to the Investigating Officer was not examined as a prosecution witness to the reasons best known to them, it said.

It was pointed the trial court should have remained vigilant and it was absolutely essential for the Court to have exercised powers under Section 311 CrPC so as to summon and examine Shamlal Garg in evidence because his evidence was essential for a just decision of the case. 

The court also said the complainant party failed to offer logical explanation for failing to file an FIR even after the kidnapped boy had returned home. 

"Furthermore, the currency notes were handed back to Mahesh Garg without any order of the court which is an act of gross misconduct on the part of the Investigating Officer. Rather, this court is compelled to observe that perhaps the entire exercise of recording disclosure statements and the recovery of the currency notes is totally sham and that is why, the currency notes were neither deposited in the malkhana of the police station/bank nor were the same produced in the court thereby, creating strong doubt on the very factum of the recovery," the bench said setting free all the accused who were already on bail, holding their conviction cannot be sustained.